In a decision released today, the EU Court of Justice ruled in Brustle v. Greenpeace C-34/10 that processes requiring the use of human embryos, broadly defined, as base material even if the description does not refer to the use of human embryos are unpatentable in Europe.

The European Directive at issue stated:

Article 6
1. Inventions shall be considered unpatentable where their commercial exploitation would be contrary to ordre public or morality; however, exploitation shall not be deemed to be so contrary merely because it is prohibited by law or regulation.
2. On the basis of paragraph 1, the following, in particular, shall be considered unpatentable:
…
(c) uses of human embryos for industrial or commercial purposes;

The court provided a broad meaning to the term ‘human embryo’:

35. Accordingly, any human ovum must, as soon as fertilised, be regarded as a ‘human embryo’ within the meaning and for the purposes of the application of Article 6(2)(c) of the Directive, if that fertilisation is such as to commence the process of development of a human being.

36. That classification must also apply to a non-fertilised human ovum into which the cell nucleus from a mature human cell has been transplanted and a non-fertilised human ovum whose division and further development have been stimulated by parthenogenesis. Although those organisms have not, strictly speaking, been the object of fertilisation, due to the effect of the technique used to obtain them they are, as is apparent from the written observations presented to the Court, capable of commencing the process of development of a human being just as an embryo created by fertilisation of an ovum can do so.

The court concluded that:

The answer to the third question is therefore that Article 6(2)(c) of the Directive excludes an invention from patentability where the technical teaching which is the subject-matter of the patent application requires the prior destruction of human embryos or their use as base material, whatever the stage at which that takes place and even if the description of the technical teaching claimed does not refer to the use of human embryos.

Some commentary on the ruling is available from several sources, including the WSJ Blog, and Patents4Life blog among others.